Supreme Court Justices Do Make the Law
At the July 9 announcement of his nomination to the US Supreme Court, Judge Brett Kavanaugh said that judges should interpret the law, not make the law. The Wall Street Journal subsequently praised Trump for keeping his promise to choose someone “who will faithfully interpret the Constitution as written.”
It is time to stop saying this nonsense. If the law were that easy to interpret and apply, the Supreme Court would have no cases to decide. Anyone who has read the Constitution knows that its brief text is subject to different interpretations, even by so-called originalists. Supreme Court justices do make law; it is the reasons for their decisions that matter. What democracy requires are justices who are non-partisan, independent, and fair. That may not be what we get.
Media reports agree that President Trump’s nominee is a Washington insider, a reliable conservative skeptical of regulatory agencies. It is foolish to predict a nominee’s future opinions, of course, but Kavanaugh’s record and his supporters suggest that, if confirmed, he would move the court decisively to the right. The future of reproductive liberty and civil rights dominate public debate, but also at stake are laws governing consumer protection, health policy, worker’s rights, income inequality, environmental protection, immigration, criminal justice, and perhaps the legitimacy of the Supreme Court itself.
Trump outsourced the selection of nominees to the Federalist Society and the Heritage Foundation. Heritage’s website says it is “ramping up our efforts to get [Trump and Republican Congressmen] conservative policy solutions that will shrink the size of government, reform the tax code, dismantle Obamacare, and secure our borders.” Politico calls Kavanaugh “much loved in conservative legal circles as an originalist in the mold of Justice Clarence Thomas and former Justice Antonin Scalia.”
Conservative groups view Kavanaugh as a fifth vote to dismantle key elements of the country’s social and economic structure. Libertarians who seek a return to a laissez-faire economy with limited government regulation are unhappy with worker protections like collective bargaining, minimum wage, and maximum hour laws, as well as environmental and workplace health and safety standards. Their emphasis on constitutional protection for property rights and “personal responsibility” underlies opposition to taxes that finance public education, housing, and health care, including Social Security, Medicare, Medicaid, and the Affordable Care Act. This outlook also opposes government interference with entrepreneurial freedom, like the consolidation of hospitals and insurance company mergers, which are likely to keep health care prices high, leading employers to shift costs to their employees.
As Jayne Mayer describes in Dark Money, libertarian groups affiliated with the Koch network, Robert Mercer, Richard Scaife, and others, recognized that a majority of Americans did not agree with their views, so they could not rely on elections to achieve their goals. Their alternative strategy: gerrymandering voting districts to enable a minority of voters to elect a majority of legislators, shifting political control to the minority party—here the Republican Party. Another tactic includes laws to prevent mythical voter fraud, which sound neutral, but disenfranchise many citizens who are likely to vote against Republican positions. An additional approach is to appeal to voters who focus on (decidedly non-libertarian) laws restricting individual liberty to make decisions about contraception, abortion, and marriage. These strategies can cobble together enough votes to gain control of legislatures that will enact the desired agenda of economic programs.
The judiciary can be a moderating force against extreme swings in legislation. But the growing number of conservative judges like Neil Gorsuch, groomed by the Federalist Society, are beginning to reinterpret constitutional rights to favor wealthy organizations, while diminishing civil liberties as well as government regulatory authority. New interpretations of the First Amendment’s protection of religious beliefs, as in Hobby Lobby and Masterpiece Cakeshop, for example, give employers and businesses more justifications for refusing to provide employee health benefits or serve customers they do not like. And more cases are coming to expand those rulings. New interpretations of federal regulatory authority could cripple the Consumer Financial Protection Bureau, overturn Environmental Protection Agency rules, and allow work requirements as a condition of eligibility for Medicaid benefits.
As Ezra Klein writes in Vox, “What’s emerging now is a dangerous loop, in which Republicans barely holding onto power manage to keep control of the Supreme Court by any means necessary, and in return, the Supreme Court’s Republican appointees issue rulings to help their party cling to political power.” It is no surprise that the Koch Brothers’ Americans for Prosperity is committing “seven figures for paid advertising and grass roots engagement in support of Judge Kavanaugh’s confirmation.” According to Patrick Buchanan, if Kavanaugh is confirmed, “Trump may have completed the capture of all three branches of the US government for the Republican Party.”
The court acquires its legitimacy as the final arbiter of difficult disputes not from legal expertise alone, but also from public confidence in the independence, objectivity, and fairness of its decisions. A court that consistently adopts partisan positions with a Republican majority transforms itself into just another legislature engaged in partisan politics. So, why have the court at all? Justices may have different intellectual approaches to legal issues, but partisanship in the third branch is a threat to the rule of law. As Jeffrey Toobin writes in The New Yorker, “The Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling ways.”
Wendy Mariner is the Edward R. Utley Professor of Health Law, Ethics & Human Rights.